Tuesday, December 01, 2009

Demjanjuk

By Mike Dorf

The trial of John Demjanjuk now underway in Germany highlights how the criminal justice system serves multiple, sometimes conflicting goals.

1) Incapacitation plays effectively no role in this case. Even if Demjanjuk is in better physical shape than he appears (as suggested by a prosecutor quoted in one story), there is no realistic chance that Demjanjuk would commit further acts of genocidal murder if allowed to live out his days without a trial.

2) General deterrence could be said to play some role here. By showing the world that even an 89-year-old man will be made to stand trial for his participation in crimes against humanity over six decades ago, the trial could be thought to have some impact on the thinking of those who would perpetrate or cooperate in the perpetration of genocide. The message the trial sends is that there is no statute of limitations for mass murder, and that perpetrators will never be able to rest comfortably.

3) Retribution is obviously an important part of this trial, but a small one. At no point in his life could Demjanjuk have been made to suffer a punishment commensurate with what he did as a guard at the Sobibor death camp and two other camps, but given his current state, his capacity for experiencing punishment is small. That's not to say that a retributivist would think punishment unwarranted, however.

4) The case also serves a number of expressive purposes, including:

a) Rejecting Holocaust denial;

b) Affirming the German state's repudiation of its Nazi past;

and more broadly,

c) Validating the rule of law.

Note that b) is potentially problematic because it allows Demjanjuk's lawyers to argue that he is being tried as a Ukrainian for crimes that were conceived and organized by Germans. In my view, this argument cannot play well with anyone familiar with post-War Germany, which, more than most countries that have perpretrated historical injustices, has made a serious and sustained effort to acknowledge and atone for its past. Israel would have had a legitimate claim to try Demjanjuk, but having reversed his conviction and death sentence in the Ivan the Terrible prosecution, understandably declined a second opportunity. Ukraine might also have been a worthy prosecutor, especially in its post-Orange Revolution incarnation, but Germany is a fully appropriate site.